Little Drama Expected at Kagan Hearings

The Supreme Court nominee will likely have to answer for her characterization of the hearings as a charade

By Alex Kingsbury

Posted: June 28, 2010

Solicitor General and Supreme Court nominee Elena Kagan wrote 15 years ago that confirmation hearings for justices to the high court had become a "vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis." [Read 10 Things You Didn't Know About Kagan.]Click here to find out more!

Today, when Kagan faces her own confirmation hearing to replace retiring Justice John Paul Stevens, she will likely have to answer for that characterization. A Democratic staffer on the Senate Judiciary Committee says that, in fact, it may be the first question she receives. But while she'll likely put those words into context—they came from a 1995 review she wrote of Stephen Carter's book The Confirmation Mess—many court watchers concur with the thrust of her thesis. "There's very little incentive for the nominee to say anything more than what is needed to pass the confirmation process," says Daria Roithmayr, a professor at the University of Southern California Law School. "Since the Robert Bork hearings, the task of the nominee is simply not to say anything disqualifying." [See a gallery of editorial cartoons about Kagan.]

Bork, a nominee during the Reagan administration, was denied a seat on the court after a scathing confirmation process in which Democratic senators focused on his "originalist" legal philosophy. Indeed, Kagan contrasted the modern confirmation process with Bork's hearing, which she lauded as "a serious discussion of the meaning of the Constitution, the role of the court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the court in the proper direction."

The public, for its part, appears largely ambivalent about Kagan. In a Pew Research Center poll late last month, 33 percent of those surveyed said that Kagan should be confirmed, 23 percent were opposed, and 43 percent were undecided. As the only recent Supreme Court nominee not to have been a sitting judge, Kagan's written record sheds little light on how she views controversial issues. So, senators will likely prod her on hot-button topics such as abortion, gun control, and campaign finance legislation. Nominees, however, have recently refused to talk deeply about subjects likely to come before the court, which often rules out debate on controversial issues.

As long as Kagan can avoid a major disqualifying remark, the senators are likely to confirm her, experts predict. "Like Republican senators did with Sonia Sotomayor, they may decide to hold their fire for a more controversial nominee," says Martin Flaherty, a professor at Fordham Law School, who has known Kagan since they were undergraduate classmates at Princeton University. Republicans on the Judiciary Committee have hinted that this might be the case, given her Ivy-covered résumé and her easy Senate confirmation last year as solicitor general.

In the end, the senators' most effective approach would be to hold the nominee to her own standard. In the same 1995 article, Kagan criticized questioning by senators who "do not insist that any nominee reveal what kind of justice she would make, by disclosing her views on important legal issues."